The Maharashtra Food and Drug Administration (FDA) has issued show-cause notices to Shah Rukh Khan, Ajay Devgn and Tiger Shroff over their alleged involvement in a Vimal Elaichi advertisement that the regulator believes could amount to surrogate promotion of banned pan masala.
The action has raised questions about the extent of the FDA's powers and whether celebrities can be held responsible under food-safety laws for appearing in advertisements linked to products that are prohibited in Maharashtra.
The notices were issued on August 16 and cite Sections 24 and 53 of the Food Safety and Standards Act, 2006. The provisions deal with misleading food advertisements and penalties for people involved in their publication.
The actors have been given 15 days to submit their explanations and supporting documents.
Can Maharashtra FDA act against celebrities?
Legal experts say the FDA does have a basis to seek explanations from celebrities allegedly involved in a misleading food advertisement, but the extent of its powers remains a matter of legal interpretation.
Section 53 of the Food Safety and Standards Act provides for a penalty of up to Rs 10 lakh against anyone who publishes or is a party to the publication of a misleading food advertisement.
However, the FDA itself cannot impose this penalty. Under Section 68 of the Act, the penalty can be imposed by an Adjudicating Officer of at least the rank of Additional District Magistrate. Such an order can subsequently be challenged before the Food Safety Appellate Tribunal.
The law does not specifically define celebrity endorsers or brand ambassadors in the same way as the Consumer Protection Act does.
As a result, treating an actor as being "party to the publication" of an advertisement is possible under the FSS Act, but the precise legal position is not yet settled.
The current notices are therefore primarily an opportunity for the actors to explain their role rather than a finding that they have violated the law.
Surrogate advertising can involve multiple laws
The legal framework surrounding surrogate advertising involves more than one law and regulatory authority.
The Consumer Protection Act, 2019 gives powers to the Central Consumer Protection Authority (CCPA) to act against misleading advertisements. The Cigarettes and Other Tobacco Products Act (COTPA) also regulates tobacco products and their advertising.
Legal experts say these laws can operate alongside the Food Safety and Standards Act.
The FDA has chosen to proceed under the law it administers, while other regulators may have separate powers depending on the nature of the alleged violation.
The FDA may also be seeking information about the actors' advertising contracts, their involvement in the campaign and whether they were aware that the advertisement could potentially function as a surrogate for a prohibited product.
Can the FDA order social media posts to be removed?
This is one of the more disputed aspects of the notices.
The FDA has asked the three actors to remove promotional material related to the advertisement from their social media accounts.
However, legal experts say there is a distinction between asking for content to be removed and having the statutory authority to order its takedown.
The Food Safety and Standards Act primarily provides for penalties and regulatory action in relation to misleading food advertisements. The power to direct discontinuation of advertisements under the Consumer Protection Act rests with the CCPA.
Online content blocking is separately governed by Section 69A of the Information Technology Act, under which designated central authorities or courts can order blocking in specified circumstances.
The FSSAI or Maharashtra FDA is not the designated blocking authority under Section 69A.
This means the FDA can seek removal of promotional material, but whether it can legally compel celebrities to remove all such posts is a more complicated question.
Why is Vimal Elaichi at the centre of the dispute?
The FDA's case revolves around the allegation that the Vimal Elaichi advertisement could function as surrogate advertising for Vimal Pan Masala.
Surrogate advertising generally refers to a strategy in which a brand associated with a restricted or prohibited product promotes another product using similar branding, slogans, packaging or visual identity.
Regulators can examine several factors to determine whether an advertisement is actually promoting a restricted product indirectly.
These can include the brand name, slogan, visual identity, packaging, celebrity associations and the relationship between the advertised product and the restricted product.
The Vimal brand has been associated with the slogan "Bolo Zubaan Kesari" in its pan masala and elaichi promotions.
Should the FDA have questioned the company first?
The legal dispute also raises the question of whether the manufacturer should have been the primary focus of the investigation.
If the allegation is that Vimal Elaichi is being used as a surrogate for banned pan masala, legal experts argue that the manufacturer would be better positioned to explain whether the elaichi product is independently manufactured, sold and marketed.
Questions about the company's distribution, sales and product positioning could therefore be central to determining whether the advertisement amounts to surrogate promotion.
The role of celebrities could then be assessed based on their contracts, knowledge and involvement in the campaign.
Maharashtra's ban on tobacco-containing pan masala
Maharashtra has prohibited the manufacture, storage, distribution, transportation and sale of gutkha and pan masala containing tobacco or nicotine under its food-safety regulations.
This has also raised questions about enforcement.
If a prohibited product is allegedly continuing to be promoted or reaching consumers in the state, the issue extends beyond the celebrity endorsements to whether the existing prohibition is being effectively implemented.
The FDA's notices could therefore bring renewed attention to both surrogate advertising and enforcement of Maharashtra's long-standing restrictions on tobacco-containing pan masala.
For now, the notices remain show-cause proceedings. The actors have an opportunity to respond, and any further action will depend on the explanations and evidence considered by the authorities.
